IN THE SUPREME COURT OF ZAMBIA SCZ Appeal No.

145/2011
HOLDEN AT KABWE

(Criminal Appellate Jurisdiction)

BETWEEN:

KAHALE KANYANGA APPELLANT

AND

THE PEOPLE RESPONDENT

CORAM: CHIBESAKUNDA, MUYOVWE AND MUSONDA, JJS.

On 1st November 2011 and 10th October 2012

For the Appellant: Mr. K. Phiri – Senior Leal Aid Counsel

For the Respondent: Ms. R. N. Nkhuzwayo – Deputy Chief State
Advocate

JUDGMENT

Musonda, JS, delivered the Judgment of the Court.

Cases Referred To:

1. Tembo V The People (1972) ZR 22.

2. Lubendae V The People (1983) ZR 54.
3. Whiteson Simusokwe V The People (2002) ZR 63.
4. Jack Chanda and Kennedy Chanda V The People ZR 124.
5. Wilson Masauso Zulu V Avondale Housing Project Limited
(1982) 172.

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 This was an appeal against conviction and sentence. The

appellant was charged with three counts of murder Contrary to

Section 200 of the Penal Code Chapter 87 of the Laws of Zambia.

The particulars of the first count were that Kahale Kanyanga on the

26th day of November 2000 at Kande Village in the Senanga District

of the Western Province of the Republic of Zambia did murder

Mushoba Wakina. The appellant was sentenced to the ultimate

penalty upon conviction.

The particulars of the second count were that Kahale

Kanyanga on the 26th day of November 2004 at Senanga in the

Senanga District of the Western Province of the Republic Zambia,

did murder one Bunonga Changano.

The particulars of the third count were that on 26th day of

November 2004 at Senanga in the Senanga District of the Western

Province of the Republic of Zambia, did murder one Kamashi

Lumayi.

The evidence for the prosecution centred on six witnesses.

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 PW1 was Nomanga Muyawano, the wife of Kamashi Lumayi

(deceased). She testified that on 26 th November 2004 her husband

left for a meeting at the community school. He instructed her to

look after their visitor Chameya whom she followed to a nearby

village. She found him drinking with Mushoba Wakina and

Bunonga Changano. She joined them, while the appellant was

quietly seated alone on the other side.

When they started drinking beer which Chameya bought, the

appellant rose and shifted where Chameya was sitting, got the

bottle of beer he was drinking and drunk all of it, after which the

appellant put the bottle in front of Chameya. When Chameya asked

who had drunk the beer, the appellant responded that, it was him

and challenged Chameya to do whatever he wanted. The appellant

stood up and kicked Chameya on the nose and he started bleeding.

Chameya left the appellant and went to the PW1’s house, but the

appellant followed him and continued kicking him, until he ran into

the bush to hide.

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 The appellant went back to the drinking place. Mushoba

Wakina asked the appellant why he grabbed the beer without

asking for it, the appellant got a knife from the right pocket of his

trousers and cut her throat and she died instantly. When Bunonga

Changano saw what had happened to her mother, she picked a

stick and hit the appellant, who stabbed her in the back. The

witness then left for the appellant’s village to tell the people that the

appellant had killed a lot of people. Namatama Kumutumwa was

following her behind.

The appellant pursued them. The witness met her husband

Kamashi Lumayi, who by-passed her. When the appellant saw her

husband, he started stabbing him without even talking to him. The

appellant stabbed her husband on the left side of the ribs, on the

right side of the chest, in the neck where there were three stab

wounds and on the cheek and he died instantly.

The witness told the court that at that juncture a man by the

name of Munjanja came and tried to apprehend the appellant, but

in the process the appellant also stabbed him in the groin, the chest

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and on the right hand, but he managed to grab the knife from the

appellant. She said that another man, Kahilu also came and helped

Munjanja to tie the appellant. Later other people came who

assisted in putting the three bodies in the shade, which were later

taken on an ox-cart to Senanga. The witness had known the

appellant for some years, he was living in a neighbouring village.

She identified the knife and the appellant in court.

In cross-examination, she stated that her relationship with the

appellant before the incident was good and she was surprised why

he behaved the way he did. The beer the appellant drank was

almost half the size of a small manzi bottle. The appellant had

vowed that he did not care what would happen after he drank

Chameya’s beer.

In re-examination she said the appellant was not in a drunken

state when he stabbed the three deceased persons.

PW2 was Namatama Kamutumwa. She testified that when

she came from the river around 09:00 hours, she found PW1,

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Chameya, Mushoba Wakina and Bunonga Changano drinking beer

in a Coca-Cola bottle which was half full. While standing about 5

metres from where they were drinking, she saw the appellant going

to where the group was seated, got Chameya’s beer and drank it.

When Chameya asked the appellant why he drank his beer, the

latter’s response was that he did not care what was going to

happen. At that point the appellant started beating Chameya and

kicked him on the nose and he started bleeding until he ran away

into the bush to hide. Later the appellant got hold of Mushoba

Wakina dropped her down and cut her throat with a knife from his

pocket. Bunonga Changano got a stick and hit the appellant who

in turn stabbed her with a knife several times in the chest and she

eventually fell down.

PW2, Nawanga Muyawano, Matanka Ndongo and Mangolwa

started running away from the scene and met Kamashi Lumayi

whom they advised not to go to the village, because the appellant

had killed two people. The appellant met Kamashi Lumayi who he

stabbed several times and he fell down and died. Munjanja came

and struggled to retrieve the knife from the appellant who stabbed

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him in the chest. Munjanja was later joined by Kahilu and they

managed to tie the appellant’s hands and the knife he was holding

fell down. The ox-cart was arranged to take the three bodies to

Senanga police station together with the appellant. The witness

identified the knife and the accused. The appellant did not look

drunk prior to and during the incident.

PW3 was Kahilu Kashuku. He testified that when he came

home from the river between 09:00 hours and 11:00 hours on 26 th

November 2004 he met Nowanga who told him that the appellant

had stabbed some people to death with a knife. He found Munjanja

had already apprehended the appellant. He got some ropes which

they used to tie him. The witness told the court that later an ox-

cart was organized to take the three bodies to Senanga police

station, where the appellant was detained. The witness testified

that the appellant was his cousin and that he had been living with

him since he was born. The witness identified the knife and the

accused.

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 In cross-examination, the witness stated that he had lived

with the appellant for a long time. Appellant used to drink, but he

had never behaved in such a way. The appellant did not show any

strange acts prior to the incident. Though the appellant had gone

to drink on the material day, he did not appear drunk. The witness

stated that in 1996, the appellant had a disease of the mind, at one

time he wanted to kill a mad man and he was subsequently taken

to Litambya hospital for treatment. The appellant looked frightened

and appeared to panic when he was being tied by the witness and

Munjanja.

In cross-examination the witness stated that he saw the

appellant a day before the incident and he was normal. On the

material day the appellant did not show any sign of a disease of the

mind.

PW4 was Musole Kamashi, who identified her father’s body

Lumayi Kamashi before the post-mortem. She saw stab wounds on

the chest, neck, cheek and on the side of the body.

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 PW5 Chakunona Kapoka identified the bodies of her mother

Mushoba Wakina and her sister Bunonga Changano. Her mother

Mushoba Wakina had her throat cut, while her sister Bunonge

Changano had two wounds, one on the chest and the other on the

stomach.

PW6 was Edgar Mufana, who was the arresting officer. He

testified that on 27th November 2004, he was on duty at Senanga

police station when he was handed over three dockets of murder

cases and a home-made knife allegedly used to commit the acts.

He arranged post-mortems which were conducted by Dr. Kayunga

on the three bodies on 29th November 2004. PW4 identified the

body of Kimashi Lumayi, PW1 identified the bodies of Mushoba

Wakina and Bunonga Changano.

After he interviewed the appellant, he made up his mind to

arrest him for murder. The witness produced the post-mortem

reports and the knife. The witness had identified the appellant as

accused in the court below. That was the prosecution case. After

which the appellant chose to remain silent.

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 The defence in the court below was based on provocation,

drunkenness and insanity. The case of Tembo V The People(1)

where it was held that an argument which eventually resulted into

a fight can amount to provocation sufficient to reduce murder to

manslaughter, was cited in support of that defence. The learned

trial Judge rejected that defence on the facts in these terms:

“In this case there is overwhelming evidence that it

was the accused who provoked others. He is the one
who intended to fight others. He provoked Chameya
by drinking his beer without his consent. When
Chameya queried him, he challenged him to do
whatever he wanted and the accused went on to
kick him on the nose until he ran away into the
bush. The evidence shows that without being
provoked, the accused attacked Mushoba Wakina by
cutting her throat. By this act the accused provoked
Bunonga Changano who tried to hit him with a
stick, but he stabbed her several times until she
died. Again, without being provoked, the accused
stabbed Kamashi Lumayi to death when he met him”

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 When dealing with the defence of drunkenness, the learned

trial Judge had this to say:

“Although the accused might have been drinking,

the evidence of PW1, PW2 and PW3 was that he did
not appear drunk”

The learned trial Judge cited our decision in Lubendae V The

People(2), where we said:

“Evidence of heavy drinking even to the extent of

affecting co-ordination of reflexes is insufficient in
itself to raise the question of intent unless the
accused person’s capacities were affected to the
extent that he may not have been able to form the
necessary intent”

There was a defence of insanity which was raised in cross-

examination by the learned defence counsel. The learned trial

Judge observed:

“The evidence of PW5, the accused’s cousin who

lived in the same village with him was that, apart
from 1996 when the accused had a mental disorder
and taken to the hospital for treatment, he was very

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 normal when he saw him the day before and on the
material day. The evidence of PW5 was
corroborated by the medical evidence following an
order of this court made pursuant to Section 17 of
the Criminal Procedure Code. The report dated 24 th
August 2006 read…it is my opinion that he was not
laboring under any mental disorder at the material
time…it is further my opinion that he is currently
mentally well and that he is fit to make a plea,
stand trial and follow proceedings”

The learned trial Judge concluded that the appellant had the

necessary intent to cause death of the three deceased persons and

convicted him of the three counts of murder and imposed the

ultimate sentence.

On behalf of the appellant Mr. Phiri filed one ground of appeal.

It was contended that the learned trial Judge erred in law and fact

in failing to find extenuating factors to necessitate a sentence other

than death. It was argued that it is a well founded principle of law

that even if a murder charge has been proved, the existence of

extenuating circumstances can reduce the moral culpability to

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warrant a custodial sentence other than that of death. Our

decision in Whiteson Simusokwe V The People(3) was cited where

the defence counsel alleges we said:

“Beer drinking can be an extenuating circumstance”

Mrs. Khuzwayo in her response to the sole ground filed by Mr.

Phiri, submitted that there was no evidence of heavy drinking. The

appellant drank half a bottle of coca-cola. Of the three people the

appellant killed, one of them did not even provoke the appellant.

There was, therefore, no extenuation.

Mr. Phiri replied that the defence was not saying he was very

drunk, but that he was drinking.

We have considered the submissions by both counsels in

depth. We note that the defences of provocation, drunkenness and

insanity, which were raised before the trial court have been

abandoned in this court. What has been advanced in fact is not an

appeal against conviction, but sentence. What has been canvassed

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is that another sentence other than death within the confines of

Section 201 ought to have been imposed as the appellant was

drinking. Subsection 2 of Section 201 is couched in these terms:

2 For the purpose of this Section –

(a) An extenuating circumstance is any fact

associated with the offence which would
diminish morally the degree of the convicted
person’s guilty;
(b) In deciding whether or not there are extenuating
circumstances, the court shall consider the
standard of behaviour of an ordinary person of a
class of the community to which the convicted
person belongs.

We said in Jack Chanda and Kennedy Chanda V The

People(4):

“Failed defence of provocation, evidence of

witchcraft accusation and evidence of drinking can
amount to extenuating circumstances”

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 This was not said in the case of Whiteson Simusokwe V The

People supra as submitted by Mr. Phiri. All what we said there

was:

“A failed defence of provocation affords extenuation

for a charge of murder”

In this case, the learned trial Judge made findings of fact that

the appellant was not drunk, he was not insane and he provoked

the three deceased persons. We agree with these findings of fact.

We are satisfied that the findings in question were not perverse or

made in the absence of any relevant evidence or upon a

misapprehension of facts or that they were findings which, on a

proper view of the evidence, no trial court acting correctly could

reasonably make. This is what we said in Wilson Zulu V Avondale

Housing Project(5).

Having disposed of the defences raised in the court below, we

wish now to address the sole ground filed in this appeal.

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 However, before we deal with the ground of appeal we wish to

draw a distinction between drunkenness which negates the intent

to commit murder and drunkenness which avails the accused

charged with murder extenuation.

In Lubendae V The People supra, we stated the defence of

intoxication as negating the necessary intent when there is:

(i) Heavy drinking;

(ii) The accused person’s capacities were affected
to the extent that he may not have been able to
form necessary intent.

When drunkenness is being advanced to negate a necessary

intent i.e. in murder, what the defence is saying is that due to

heavy drinking, the accused or appellant had been incapacitated

from forming the necessary intent, prescribed by Section 204 of the

Penal Code which defines malice aforethought as:

(a) An intention to cause death of or to do grievous

harm to any person, whether such person is the
person actually killed or not;

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 (b) Knowledge that the act or omission causing
death will probably cause the death of or
grievous harm to some person, whether such
person is the person actually killed or not,
although such knowledge is accompanied by
indifference whether death or grievous bodily
harm is caused or not, or by a wish that it may
be caused;
(c) An intent to commit a felony;
(d) An intention by the act or omission to facilitate
the flight or escape from custody of any person
who has committed or attempted to commit a
felony

When extenuation is being pleaded, the necessary intent has

been established, but the defence is saying due to circumstances

like an accusation of witchcraft, which is a stigma, the accused

committed the murder, so that should diminish his culpability. The

plea is therefore mitigatory against the ultimate sentence. In other

jurisdictions, they call it ‘diminished responsibility’.

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 We say this to draw a distinction between the defence of

drunkenness to a criminal charge and a plea of extenuation which

is only available in murder to mitigate the ultimate sentence.

In Jack Chanda and Kennedy Chanda V The People supra,

what we meant was that each case must be treated on its peculiar

facts. It does not necessarily follow that if the appellant had been

drinking, then that amounts to extenuating circumstances. In

Jack Chanda and Kennedy Chanda, the appellants had been

drinking for five hours, there was a beer drinking party, their

colleagues went to eat as they did not want to drink on empty

stomachs. These are factors we took into account when we said the

trial Judge ought to have found that, that there were extenuating

circumstances.

In the instant appeal the brutal assault of Kamashi Limayi

who was the deceased in the third count was precipitated by the

deceased being provoked by the appellant by drinking his beer and

challenged him to do whatever he wanted. When the deceased did

not react, the appellant kicked him on the nose and he started

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bleeding. The deceased left the appellant and went to PW1’s house,

but the appellant followed him and continued kicking him until he

ran into the bush. When the appellant went back to the drinking

place, Mushoba Wakina asked him why he had drank beer without

asking, he cut the throat of a defenceless woman, which murder

was the subject of the first count. The daughter tried to defend her

mother with a stick, he responded by stabbing her with a knife.

This was a defenceless woman. There was cogent evidence that he

had only drunk half a bottle of coca-cola of beer.

In our view, Section 201 should be read with Black’s Law

Dictionary Eighth Edition by Bryan A. Garner at P.260, which

defines extenuation as:

“Mitigating circumstance, means a fact or situation

that does not justify or excuse a wrongful act or
offence, but that reduces the culpability and this
may reduce punishment. A fact or situation that
does not bear on the question of a defendant’s quilt,
but that is considered by the court in imposing
punishment and especially in lessening severity of a
sentence”

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 These were unprovoked murders, carried out with profound

brutality on the three deceased persons. Could this conduct be

said to be mitigatory?. We think not.

For the reasons we have given we find that there were no

extenuating circumstances. The sole ground filed herein lacks

merit. The outcome is that the whole appeal is dismissed since the

only ground which was argued on appeal was against sentence.

……………………………….... ……..…………………………
L. P. Chibesakunda E.N.C. Muyovwe
SUPREME COURT JUDGE SUPREME COURT JUDGE

……………………………………….
P. Musonda
SUPREME COURT JUDGE

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